Court gags employee who refuses to wear a mask

A deliveryman for a confectionery chain who was suspended because he repeatedly refused to wear a mask is not entitled to his salary, the District Court of Utrecht ruled last week.

What was the issue?

Despite his employer giving him explicit instructions, the deliveryman refused to wear a mask during working hours. A warning from his boss and even a verbal confrontation with a colleague failed to change his mind.

The confectionery chain resorted to suspending the deliveryman and temporarily stopping his salary. Although the company gave him the opportunity to have the measure reversed by simply wearing a mask, the deliveryman refused. Instead, he took the case to court to claim payment of his unpaid salary.

Statutory right to issue instructions

The court found that, as an employer, the confectionery chain is entitled in principle to exercise its statutory right to issue instructions. On the grounds of this right, an employer may unilaterally give instructions to its employees about the performance of work and the promotion of good order at the company. In principle, members of staff are obliged to comply with these instructions, unless their privacy is infringed.

Violation of privacy

The deliveryman took the position that the mask infringed upon his right to privacy because it caused inconvenience, discomfort and health risks. The court then examined whether this infringement was justified. In its opinion, the court found the requirement was indeed justified, because the mask serves two legitimate purposes.

Legitimate purposes to justify the infringement

The first legitimate purpose involves the legal obligation of an employer to protect the individual interests of its employees by ensuring that it provides a healthy and safe working environment. Given the corona pandemic, the confectionery chain has to do whatever is necessary and within its power to prevent coronavirus infections among its employees in the workplace.

The second legitimate purpose is to protect the employer’s business interests, since the employer has, among other things, an obligation to continue to pay wages in the event of illness. It is estimated that the confectionery chain has not only lost 1,000 production hours due to workers being absent due to illness or quarantine, but also will have to continue paying these workers. The coronavirus crisis has hit the company hard. Although the effectiveness of masks is disputed by some, wearing a mask is a socially acceptable tool. For this reason, the court assumed that wearing a mask during the corona pandemic could contribute to safety and health. The confectionery chain was quite right to assume this when giving the instruction, all the more so because it gave this instruction on the advice of the trade association.

Differentiating according to job or one rule for all?

The deliveryman also argued that he should have been exempted from the requirement to wear a mask, given that he spends 80-90% of his time on the road and is only occasionally indoors. As far as he was concerned, the 1.5-metre social distancing rule should suffice.

The court made short shrift of that argument, too. It is in the confectionery chain’s interest to be consistent in its instructions. After all, wearing a mask is effective only if everyone sticks to it when indoors. What’s more, the company already differentiates according to jobs: its deliverymen are not obliged to wear masks when driving their delivery vans.

The court ultimately held that as long as the deliveryman refuses to follow the instruction, the confectionery chain is entitled to suspend his salary payment and deny him access to his work.

Eric van Dam (evd@clintlegal.com / +31 20 820 0330)